R.Jaffarullah v. Muthuramalingam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.08.2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD.NOS.1918 TO 1921 OF 2003, 34 TO 37 AND 256 TO 259 OF 2004ANDC.M.P.NOS.2217 TO 2220 OF 2004R.Jaffarullah.. Petitioners/ Landlord in CRPs.1918 to 1921 of 2003 and 34 to 37 of 20041.Siva @ Pradeep Kumar2.Mahesh @ Hemand Kumar3.Nagesh @ Lakshminarayanan .. Petitioners/ Tenant in CRP.256 of 2004Muthuramalingam.. Petitioner/ Tenant in CRP.257 of 2004 Mohammed Hussain.. Petitioner/ Tenant in CRP.258 of 2004 Mohammed Rafiq.. Petitioner/ Tenant in CRP.259 of 2004 Vs.Muthuramalingam.. Respondent / Tenant in CRP.1918 of 2003 and 34 of 2004Mohammad Hussain.. Respondent / Tenant in CRP.1919 of 2003 and 35 of 2004 1.Mohammad Rabeek2.Edayathulla.. Respondents/ Tenant in CRP.1920 of 2003 and 36 of 2004 1.Siva @ Pradeep Kumar2.Mahesh @ Hemanandakumar3.Nagesh @ Lakshmana Kumar.. Respondents/ Tenant in CRP.1921 of 2003 and 37 of 2004 Zabarulla.. Respondent/ landlord in CRPs.256 to 259 of 2004 CRP Nos.1918 to 1921 of 2004 have been preferred underSection 25 of the Tamil Nadu Buildings (Lease and Rent Control) https://hcservices.ecourts.gov.in/hcservices/ Act, 18 of 1960 against the fair and decretal orders made in RCANos.5,4,6 and 7 of 2003 on the file of the learned PrincipalSubordinate Judge (Appellate Authority), Mayiladuthurai, dated18.9.2003, confirming the fair and decreetal orders made inE.P.Nos.15,14,16 and 17 of 2001 in RCOP Nos.22,24,27 and 29 of1982 on the file of the learned District Munsif (Rent Controller),Sirkali, dated 4.2.2003. CRP Nos.34 to 37 of 2004 have been preferred under Sections25 of the Tamil Nadu Buildings (Lease & Rent Control) Act 18/60 asamended by Act 1/80 against the fair and decretal orders made inRCA Nos.10,11,12 and 13 of 2003 dated 18.9.2003 on the file of thelearned Principal Subordiante Judge (Appellate Authority),Mayiladuthurai in confirming the fair and decretal orders made inIA Nos.3,4,5 and 6 of 2001 in RCOP Nos.22,24,27 and 29 of 1982dated 4.2.2003 on the file of the learned District Munsif (RentController), Sirkali. CRP Nos.256 to 259 of 2004 have been preferred under Section25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of1960 as amended by Act 23 of 1973 and Act 1 of 1980 against thefair and final orders of the learned Rent Control AppellateAuthority (Principal Sub Court), Mayiladuthurai, dated 18.09.2003made in RCA Nos.18,16,17 and 19 of 2003, confirming the fair andfinal order of the learned Rent Controller, Sirkali, dated28.2.2003 made in RCOP Nos.17,18,10 and 9 of 1999. For Petitioners : Mr.A.Muthukumar in CRPs.1918 to 1921 of 2003 and CRPs.34 to 37 of 2004 Mr.S.Sounthar in CRPs.256 to 259 of 2004 For Respondents : Mr.S.Sounthar in CRP.1918 to 1921 of 2003 and CRPs.34 to 37 of 2004 Mr.A.Muthukumar in CRPs.256 to 259 of 2004 COMMON ORDERThis order shall govern 12 civil revision petitions,namely C.R.P.NPD.Nos.1918 to 1921 of 2003, 34 to 37 and 256 to 259of 2004. 2.C.R.P.Nos.256 to 259 of 2004 have arisen from the judgmentsof the Rent Control Appellate Authority, Mayiladuthurai made inRCA Nos.18, 16, 17 and 19 of 2003, whereby the orders of evictionpassed by the Rent Controller, Sirkali in RCOP Nos.17, 18, 10 and9 of 1999 respectively were confirmed. The C.R.P.Nos.1918 to 1921of 2003 have arisen from the judgment made by the appellateauthority in R.C.A.Nos.5, 4, 6 and 7 of 2003, which arose from theorders made in E.P.Nos.15, 14, 16 and 17 of 2001 by the tenants https://hcservices.ecourts.gov.in/hcservices/ and they were allowed. C.R.P.Nos.34 to 37 of 2004 have arisen fromthe judgment of the appellate authority made in RCA Nos.10, 11, 12and 13 of 2003, which have arisen from the orders passed by theRent Controller made in I.A.Nos.3, 4, 5 and 6 of 2001. 3.The short facts necessary for the disposal of theC.R.P.Nos.256 to 259 of 2004 can be stated thus:The respondent in these civil revision petitions is thelandlord in respect of the shop premises, which are let out to therevision petitioners, who are the tenants. All the tenants havebeen occupying the premises for carrying on their respectivebusiness. RCOP No.17 of 1999 was filed, alleging that the monthlyrental was Rs.145/-. There was rental arrears to the tune ofRs.3770/- from January, 1997 to February, 1999 for a period of 26months. So far as RCOP No.88 of 1999 was concerned, the tenant isin occupation of the building for carrying on business on amonthly rent of Rs.130/-. From January, 1995 to February, 1999 fora period of 50 months, there was rental arrears to the tune ofRs.6500/- and thus, it was a willful default and hence, he was tobe evicted. In RCOP No.10 of 1999, the tenant was in default forthe periods from July, 1997 to February, 1999 i.e. for a periodof 20 months. The monthly rental was Rs.100/- and thus, he was topay Rs.2000/- and for that willful default, he was to be evicted.In RCOP No.9 of 1999, the willful default committed by the tenantwas from July, 1997 to February, 1999, i.e. for a period of 20months at the rate of Rs.200/- per month and it was to the tune ofRs.4000/-. In all cases, it was alleged by the landlord that forthe particular periods, he has issued receipts to therespondents/tenants and thereafter, packet notebook wasmaintained, in which on payment of rental, necessary endorsementwas made by the landlord and the packet notebook is also with thecustody of the tenants. In all the cases, the common defence pleawas that there was no arrears of rental at all. They have madepayments of rental then and there and the landlord was not inpractice of issuing any receipt and thus, there was no arrears ofrental at all. On enquiry, in all the RCOPs, eviction was orderrecording a finding that there was willful default on the part ofthe tenants. Therefrom, the tenants preferred RCA Nos.18, 16, 17and 19 of 2003 and on enquiry, they were dismissed. Aggrieved thetenants have brought forth the above four civil revisionpetitions, as referred to above. 4.Advancing his arguments on behalf of the revisionpetitioners, the learned counsel would submit that in the instantcase, the petitioner was examined as P.W.1; that he hascategorically admitted that for a particular period, the receiptwas issued and thereafter, there was endorsement made by him inKatchayat book, which was actually in the custody of the tenants,but they were all false; that the landlord admitted that hemaintained a account book; that in order to prove the same, he hasproduced before the Court Ex.P.3, katchayat book, which accordingto the landlord maintained by him; that both the authorities belowhave relied on Ex.P.3, which never contained the signature of the https://hcservices.ecourts.gov.in/hcservices/ tenants and hence, it was a self serving document and hence, theauthorities below should have rejected the same. Added further thelearned counsel that in the instant case, the civil revisionpetition was pending before the court in respect of the otherrelief sought for for carrying out the repairs; that pending civilrevision petition, the RCOP for eviction on the ground of willfuldefault was taken; that if to be so, the fact that the tenants arein arrears of rental should have been brought to the notice of thecourt, but not done so; and that this would be indicative of thefact that there was no arrears of rental at all. 5.Added further the learned counsel that in the instant case,originally, all the RCOPs were filed for the purpose of recoveryof possession for doing repairs; that they were ordered and theRCAs at the instance of the respondents/tenants were dismissed;that thereafter, he has not followed the undertaking given; thatall would go to show that if really the intention was to carry outthe repairs, the landlord would have followed the procedures asone contemplated, but not done so; that this would go to show thatthere was no default at all; that the case of the landlord,according to the revision petitioners/tenants, is that in eachcase, there was rental arrears for a period of 15 to 20 months;that had it been true, having filed the petitions for delivery ofproperty for the purpose of doing repairs, no landlord would havewaited for a long period; that this would be indicative of thefact that there was no default at all; that the defence plea thatthe rental was paid without giving any receipt whatsoever wascorrect and it should have been accepted by the authorities belowand all the civil revision petitions have got to be allowed bysetting aside the orders of the authorities below. 6.In answer to the above, the learned counsel for therespondent would submit that in all the cases when it is allegedthat packet notebooks were maintained and the endorsements werealso made in the packet notebooks by the landlord and they were inthe custody of the tenants, it should have been produced, but theyhave not done so and that once the tenants came forward to statethat they have made payments of rental, it was for them to provethe fact, but not proved and hence, both the authorities belowwere perfectly correct in ordering eviction. 7.After careful consideration of the rival submissions made,the court is of the considered opinion that in the instant case,the orders of eviction passed by the authorities below have got tobe sustained. It is not in controversy that these petitionersbefore this court are the tenants under the respondent/landlord inrespect of the shop premises mentioned in the respective petitionsto carry on their business. In each case, there was rental arrearsfor 15 to 20 months, as stated in the petitions and as pointed outby the authorities below. The common defence plea was that therental amounts were paid then and there, but no receipts were usedto be given and under these circumstances, it has got to beaccepted. The well settled proposition of law is that in a givencase where the landlord came with the case that there was non https://hcservices.ecourts.gov.in/hcservices/ payment of rental and willful default, a duty is cast upon thetenants to prove the payments of rental and the mere averments orstatements by the tenants that they have made the payments inentirety or monthwise and there was no receipt used to be issuedcannot be countenanced. If this contention is accepted in anycase when the landlord comes with the petition for eviction on theground of willful default or non payment of rental, the tenantwould be allowed to make a easy walkover, stating that he has paidthe rent every month and there was no receipt passed on and hence,it has got to be discountenanced. 8.Under these circumstances, in the instant case, thelandlord has stated that packet notebook is maintained, in whichhe used to make endorsement, which is in the custody of the tenantand he has also given evidence before the court as P.W.1 thatduring a particular point of time, he used to give receipts andthereafter, a packet notebook was maintained, in which anendorsement is made and the same was in the custody of thetenants. He has also produced Ex.P.3, which was maintained by him.Quite naturally, it might not have contained the signatures of thetenants. The landlord has produced what was available with him andwhat was actually available with the tenants, namely the packetnotebook with the endorsement of the landlord, was not produced bythe tenants for the reasons best known to them. In a given caselike this, when a duty is cast upon the tenant to prove thepayment of rental, if not proved it has got to be inferable thatthe tenants have not made payments of rental. Under thesecircumstances, all the petitions were ordered correctly and theorders have got to be sustained. 9.In the instant case, the yet another circumstance noticedis that the landlord filed RCOP Nos.22, 24, 27 and 29 of 1982under Section 14(1)(a) of the Act for the purpose of gettingdelivery of possession of the property for the purpose ofrepairing. Originally, all the RCOPs were allowed and followingthe same, four RCAs were taken out by the tenants and they wereactually dismissed. From the dismissal orders, the tenants took iton civil revision petitions in CRP Nos.2986, 2988, 2992 and 2993of 1986 and all the four civil revision petitions were actuallydismissed by this court, pursuant to which E.Ps were filed by thelandlord in E.P.Nos.188 of 1997, 1 of 1998, 192 and 189 of 1997,seeking delivery for the purpose of repairing. Accordingly,delivery was ordered on 5.1.1999. While the matter stood thus, heseeks police aid by way of filing an execution application. Atthat time, a memo was filed by the tenants, undertaking to deliverthe possession to the landlord. Accordingly, the possession washanded over, pursuant to the memo dated 4.3.1999. Actually, thelandlord took the possession of the property. Time was alsogranted to carry out the repairing work till 3.6.1999, but notdone. Under these circumstances, the tenants filed E.P.Nos.15, 14,16 and 17 of 2001 for redelivery. Accordingly, redelivery wasordered. Aggrieved the landlord took it on appeal in RCA Nos.5,4, 6 and 7 of 2003 and all the RCAs were dismissed. Under these https://hcservices.ecourts.gov.in/hcservices/ circumstances, C.R.P.Nos.1918 to 1921 of 2003, as referred toabove, have been brought forth. 10.At this juncture, it is pertinent to point out thatoriginally, all the RCOPs were filed in the year 1982 and it cameupto civil revision petitions, which were disposed of in the year1986. Under these circumstances, the execution petitions werefiled in 1997. While the delivery was sought for in the executionpetitions by the landlord, there is no reason for the tenants tomake payment without any receipt or acknowledgement for payment ofrental during the relevant period. They have actually deliveredpossession only on 4.3.1999. The period covered in the willfuldefault, as referred to above, would cover the period when theexecution petitions were filed for delivery in E.P.Nos.188 of1997, 1 of 1998, 192 and 189 of 1997 till the delivery was givenon 4.3.1999. This would be indicative of the fact that afterdelivery application was filed, they did not make payment ofrental at all. Thus, the circumstances would indicate the nonpayment of rental during the relevant period. Under thesecircumstances, eviction order was passed by the Rent Controller,which was subsequently affirmed by the appellate authority and ithas got to be confirmed. Accordingly, C.R.P.Nos.256 to 259 of 2004are dismissed. No costs. Consequently, the connected CMPs are alsodismissed. 11.So far as CRP Nos.1918 to 1921 of 2003 are concerned, thelandlord had challenged the orders of delivery originally made bythe Rent Controller, which was subsequently affirmed by theappellate authority in RCA Nos.5, 4, 6 and 7 of 2003. Those civilrevision petitions do not require any consideration at this stage.Apart from that originally, the property was taken delivery by thelandlord and the same was retained by him and no furtherconsideration of redelivery would arise, since order of evictionhas also been passed. Accordingly, CRP Nos.1918 to 1921 of 2003are disposed of. No costs. 12.I.A.Nos.3, 4, 5 and 6 of 2001 were originally filed by thelandlord for extension of time for giving redelivery of theproperty to the tenants, but the time was not extended and underthese circumstances, he preferred RCA Nos.10, 11, 12 and 13 of2003 respectively. On dismissal of the same, C.R.P.Nos.34 to 37of 2004 have been brought forth. So far as these civil revisionpetitions are concerned, no meaningful relief, at this juncture,could be granted and hence, they automatically become infructuous.Accordingly, C.R.P.Nos.34 to 37 of 2004 are disposed of. Nocosts. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvk https://hcservices.ecourts.gov.in/hcservices/ To1.The District Munsif, (Rent Controller), Sirkali.2.The Principal Subordinate Judge (Appellate Authority), Mayiladuthurai. Copy toThe Section Officer,VR Section,High Court, Madras.5 ccs to Mr.S. Sounthar, Advocate, Sr. 48097, 481013 cc to Mr.A. Muthukumar, Advocate, Sr. 47775 and 47776C.R.P.NPD.NOs.1918 to 1921 OF 2003, 34 TO 37 AND 256 TO 259 OF 2004NSM (CO)kk 16/8